Application No. 9792, Motion No. 3857. | Tex. | Jul 2, 1917
The material question presented by the case is, in substance, whether the legislation of Congress, subjecting telegraph companies engaged in interstate business to the Interstate Commerce Act for certain purposes, has the effect of superseding all State laws as to the damages recoverable for a negligent failure to deliver an interstate message, and as to the right of such a company to stipulate for exemption of liability for its own negligence. We reviewed the question fully upon the original presentation of the petition for writ of error, and have again *430 considered it in response to an urgent motion for rehearing, in support of which a great many authorities have been cited.
The message in the case was one sent from a point in Tennessee to a point in Texas. It was addressed to the plaintiff and advised him of the serious illness of a brother who died the day following. Because of the negligence of the company occurring in Texas, it was never delivered to the plaintiff, who did not learn of his brother's illness and death until his receipt of a letter some days after his burial. Upon the trial, damages were awarded the plaintiff for the mental distress suffered by him in consequence of the negligent failure to deliver the message, in accordance with the established rule in this State upon that subject. The judgment was affirmed by the Court of Civil Appeals for the Sixth District.
In the absence of legislation by Congress the right of a State to prescribe its own rules in respect to particular subjects of interstate commerce, which do not constitute a direct burden upon such commerce, is undoubted. Missouri, K. T. Ry. Co. v. Harris,
The stipulation upon the back of the message, amounting in its effect to an attempt to exempt the company from the consequences of its own negligence, was void under the law both of this State and the State of Tennessee. Western U. Tel. Co. v. Neill,
The legislation of Congress referred to is the amendment of June 18, 1910, to the Interstate Commerce Act. Supp., 1912, Fed. Stat. Ann., 112. If this amendment was an exertion by Congress of its authority over the subject of the liability of telegraph companies for the negligent non-delivery of interstate messages, including that of their right to provide by contract that they should be exempt from such liability, or if it clearly manifested a purpose on the part of Congress to extend its authority over those subjects, the rules of the State upon them are, of course, superseded. But we do not regard the amendment as open to any such construction. It is not necessary to here set it out, but its examination reveals that it classifies telegraph companies doing an interstate business as common carriers within the meaning of the Act; requires that their charges shall be just and reasonable; prohibits every unjust and unreasonable charge; permits their classification of messages and the charging of different rates therefor; and, further, in section 15 as amended, empowers the Interstate Commerce Commission to determine, after complaint made, whether their charges, regulations, or practices are unjust, unreasonable, discriminatory, or otherwise in violation of the Act, and, if it be of the opinion that they are, to prescribe those which are just, fair and reasonable. There is no mention of the liability of such companies for negligence. That subject is not dealt with or touched upon. If it had been the purpose of Congress to legislate upon it, we think it would have done so in terms clear and unmistakable. We are not required to assume that such was the intention in the absence of its clear manifestation. The laws of a State as they may be properly directed to the subjects of interstate commerce are not to be held as inconsistent with an Act of Congress unless they present an absolute conflict, or unless, at least, a purpose on the part of Congress to legislate upon the particular subject is clearly revealed. As was said in Missouri, K. T. Ry. Co. v. Harris,
"It is, of course, settled that when Congress has exerted its paramount legislative authority over a particular subject of interstate commerce, State laws upon the same subject are superseded. Northern Pac. Ry. Co. v. Washington,
Quoting from other decisions of that court this is also said in that opinion:
"In Reid v. Colorado,
The conferring of power, under the amendment of 1910, upon the Interstate Commerce Commission to pass upon the reasonableness of regulations of interstate telegraph companies, does not in our opinion amount to an affirmance by Congress that such companies may, through their own regulations, establish the measure of their liability for negligence, fixing conclusive rules upon the subject having all the force of positive law. Yet such would be the effect of a holding that because of the provisions of the amendment the stipulation referred to upon the message in this case must be allowed to absolutely control the company's liability here. It would certainly impute to Congress a lax regard for the public interest if it is to be said that it intended to leave these companies free to establish, through their own stipulations, the rules governing their public duties and obligations, making them competent, in a word, to declare the law of the land in respect to their liability for negligent failure to observe them. *433
To sustain the contention of the plaintiff in error as to the force of the stipulation referred to is but to hold that it has all the virtue of a law exempting it from liability for its own negligence except in an insignificant amount, at least until it is declared unreasonable by the Interstate Commerce Commission after complaint duly made. But we do not understand it to be the function of the Interstate Commerce Commission to promulgate rules of law upon this subject. It is the province of Congress to do that; and Congress only, in our opinion, is invested with Federal legislative power over the subject. The Supreme Court of the United States has never, to our knowledge, held by any authoritative expression that the Commission is so empowered, and we do not feel warranted in anticipating such a decision.
Even in cases admittedly controlled by the Federal law where it is held that an interstate carrier of property may by fair and reasonable agreement limit the amount recoverable to an agreed value, the agreement is not permitted to include exemption against the negligence of the carrier or its servants. The basis of the holding that such an agreement may be entered into is the advantage given the shipper in obtaining, as the consideration for the agreement, the lower of two or more rates proportionate to the amount of the risk. Adams Exp. Co. v. Croninger,
The contrast between this legislation and that of Congress relating to the liability of interstate carriers of property very strongly indicates, we think, that the regulation of the liability for negligence of interstate telegraph companies was not in the mind of Congress. In the latter is found express and definite provision upon the subject, accompanied by the emphatic declaration that "no contract, receipt, rule or regulation shall exempt such common carrier, railroad, or transportation company from the liability hereby imposed." These provisions of the Carmack amendment do not apply to telegraph companies, as held by the Interstate Commerce Commission itself.
That they do not apply to such companies, and that without some similar legislation this class of common carriers is left without any Federal regulation of their liability for the consequences of their negligence, convinces us that Congress did not intend that the amendment of 1910 should embrace the subject.
We therefore adhere to our decision denying the writ of error, and the motion for rehearing is overruled. *434